Borges v Fitness to Practice Committee

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 29 January 2004
• Neutral Citation: [2004] IESC 9
• Court: Supreme Court
• Docket Number: [S.C. No. 128 of 2003]
• Date: 29 January 2004

BORGES v. FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL & ANOR

BETWEEN

SEBASTIAN BORGES

APPLICANT/RESPONDENT

AND

THE FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL AND THE MEDICAL COUNCIL

RESPONDENTS/APPELLANTS

[2004] IESC 9

Keane C.J.

Murray J.

M ^cGuinness J.

Hardiman J.

M ^cCracken J.

128/03

THE SUPREME COURT

Synopsis:

JUDICIAL REVIEW

Fair procedures

Evidence - Right to cross-examine - Rule against hearsay- Disciplinary proceedings - Certiorari - Allegations of misconduct - Onus of proof - Whether respondent precluded from proceeding with disciplinary hearing - Whether holding of disciplinary inquiry in breach of fair procedures - Medical Practitioners Act, 1978 (128/2003 - Supreme Court - 29/1/2004) Borges v Medical Council - [2004] 1 IR 103 - [2004] 2 ILRM 81

Facts: The applicant, who had been a registered medical practitioner in the UK, had been investigated in the Professional Conduct Committee in the UK for alleged misconduct. Subsequently it was determined that the applicant was guilty of serious professional misconduct and directed that the applicant's registration in the UK be erased. Thereafter in Ireland the Fitness to Practice Committee ("the Committee") of the respondent sought to hold an inquiry into the same allegations of professional misconduct against the applicant under the Medical Practitioners Act, 1978. A difficulty arose in that the original complainants in the UK were unwilling to attend the hearing in Ireland. In addition they were not willing to take part in a video link nor to take part in a hearing by the Committee in the UK. The Committee nonetheless decided to proceed with the inquiry in Ireland and decided to admit the evidence of the transcript of the UK proceedings. The applicant initiated judicial review proceedings seeking an order of certiorari against the decision to proceed with the inquiry and to admit evidence of the transcript. Ó Caoimh J held that the hearing should not be allowed to proceed and the respondents appealed.

Held by the Supreme Court (Keane CJ delivering judgment, Murray J, McGuinness J, Hardiman J and McCracken J agreeing) in dismissing the appeal. The proposition that a tribunal could adjudicate on a serious allegation of professional misconduct which could result in a person being struck off the rolls of his profession without hearing the testimony of his accusers being given orally and tested by cross-examination, simply because they were unwilling to attend the hearing, was irreconcilable with the standards of natural justice and fair procedures required of bodies in this jurisdiction. Although they were exceptions to the hearsay rule, the admission of the evidence in this case was not justified. The judgment of the High Court was affirmed and the appeal dismissed.

Reporter: R.F.

Citations:

MEDICAL PRACTITIONERS ACT 1978 PART V

GENERAL MEDICAL COUNCIL V SPACKMAN 1943 AC 627

A SOLICITOR, RE 1992 2 AER 335

R V KHAN 1990 2 SCR 531

R V HAWKINS 1996 3 SCR 1043

MYERS V DPP 1965 AC 1001

SOUTHERN HEALTH BOAR V H (C) 1996 1 IR 219

EASTERN HEALTH BOARD V K (M) 1999 2 IR 99

CRIMINAL PROCEDURE ACT 1967 S4(F)

CRIMINAL JUSTICE ACT 1990 S9

M (A DOCTOR), RE 1984 IR 479

K (C) V AN BORD ALTRANAIS 1990 IR 396

KIELY V MIN SOCIAL WELFARE (NO 2) 1977 IR 276

HAUGHEY, RE 1971 IR 217

FLANAGAN V UCD 1988 IR 724

MAGUIRE V ARDAGH 2002 1 IR 385

MEDICAL PRACTITIONERS ACT 1978 S47

MEDICAL PRACTITIONERS ACT 1978 S46(3)

MEDICAL PRACTITIONERS ACT 1978 S45(4)

CONSTITUTION ART 40.3

CONSTITUTION ART 40.1

GALLAGHER V REVENUE CMSR 1991 2 IR 370

MYERS V DPP 1965 AC 1001

R V SMITH 1992 2 SCR 915

R V FINTA 1994 1 SCR 701

1 29th day of January 2004, by Keane C.J.

Keane C.J.

Introduction

2 The applicant/respondent (hereafter "the applicant") qualified as a medical doctor in 1974 and has been, at all material times, a registered medical practitioner in Ireland. He is a consultant obstetrician and gynaecologist and was also a registered medical practitioner in the United Kingdom until the 27 ^th October, 2000 when his name was erased from the register in that jurisdiction in circumstances which will be explained in more detail at a later point. He had been in practice as an obstetrician and gynaecologist from 1994 to 1999 at Caithness Hospital in Scotland and had previously practised in Ireland in Tralee, Cork and the Rotunda Hospital.

3 On the 8 ^th November, 2001, the applicant was given notice by the Registrar of the Medical Council that the Fitness to Practice Committee of that body proposed to hold an inquiry into allegations of professional misconduct against him under the Medical Practitioners Act, 1978(hereafter "the 1978 Act"). The allegations were set out as follows:

"That you, being a registered medical practitioner:"

(1) On or around 30 ^th August 1996, while in a professional relationship with Mrs C, touched Mrs C's breasts in a manner that was inappropriate and/or indecent and/or

(2) On or around 7 ^th August 1996, while in a professional relationship with Mrs E:-

(a) prepared a vaginal transducer for use in a sexually inappropriate manner and / or

(b) failed to make any record of your consultation with Mrs E. on the said date and / or

4 (3) acted in a manner derogatory to the reputation of the medical profession."

5 Under the heading, "Nature of Evidence", the names of witnesses whom the Registrar intended to request the attendance of at the inquiry for the purpose of giving evidence together with a summary of the nature of their evidence followed. They included Mrs C and Mrs E. A copy of the transcript of proceedings before the Professional Conduct Committee of the General Medical Council in the United Kingdom (hereafter "the P.C.C.") was also attached.

6 The hearing before the Fitness to Practice Committee (hereafter "the Committee") began on the 16 ^th January, 2002. In the interval, the solicitor for the Medical Council had written to the corresponding body in the United Kingdom enquiring whether Mrs C. and Mrs E. would be prepared to come to Dublin and give evidence in respect of their treatment. A similar enquiry was made in respect of the husband of Mrs E. who had also given evidence in the inquiry in the United Kingdom. On the 28 ^th December, 2001, the solicitors for the United Kingdom Medical Council informed the Irish solicitors that the witnesses were not prepared to attend the hearings in Ireland. Counsel for the Medical Council at the opening of the inquiry by the Committee said that, while Mrs C. had consented to her medical records being made available to the Committee, Mrs E. had not. Counsel informed the Committee that the transcript of the hearing before the P.C.C. in the United Kingdom would be put in evidence together with the decision of the P.C.C. and of the Privy Council dismissing the applicant's appeal. The notice of the 8 ^th November, 2001 had also indicated that the registrar would be arranging for the attendance of Dr. Ian Johnston who had given evidence before the P.C.C. and a consultant obstetrician / gynaecologist in relation to matters referred to in a report which it was intended to furnish to the applicant in advance of the inquiry.

7 Having heard submissions from counsel for the Medical Council and for the applicant, the chairman of the Committee said that, while they considered that the inquiry should proceed if possible, they thought that the possibility of hearing the evidence abroad should be investigated. The inquiry was adjourned for some hours in order to enable this to be done, and when it resumed, counsel informed the Committee that the witnesses concerned were still not prepared to come to Ireland, were not willing to be the subject matter of cross-examination by a video link and were not willing to take part in a hearing by the Committee in the United Kingdom. Having heard further submissions, the Committee ruled that it was prepared to admit the evidence consisting of the transcript and decisions of the P.C.C. and Privy Council and would, accordingly, proceed with the inquiry on the 18 ^th February.

The proceedings in the United Kingdom

8 The transcript of the hearing before the P.C.C. in London records that it opened on the 23 ^rd October, 2000. The charges set out against the applicant were as follows:

"That, being registered under the Medical Act,"

1. (a) On 22 ^nd November 1992 you examined Mrs A.

(b) The purpose of your examination was to perform a "preoperative" check.

(c) You touched Mrs A. 's breasts in a manner that was

(i) inappropriate,

(ii) indecent,

9 (d) you did not make a record of her examination.

10 2. (a) On 11 ^th November 1994 you were consulted by Mrs B,

11 (b) You gave Mrs B an internal examination,

12 (c) You touched Mrs B 's breasts in a manner that was

13 (i) inappropriate,

14 (ii) indecent;

15 (d) You did not make any record of your examination,

16 3. (a) On an unknown date in 1996 you were consulted by Mrs C.

17 (b) You gave Mrs C. an internal examination.

18 (c) You touched Mrs C's breasts in a manner that was

19 (i) inappropriate,

20 (ii) indecent;

21 4. (a) On 7 ^th August 1996 you were consulted by Mrs E.

22 (b) During the course of the consultation you used a vaginal transducer,

23 (c) You prepared the vaginal transducer for use in a sexually inappropriate manner,

24 (d) You did not make any record of the consultation,

25 And that in relation to the facts alleged you have been guilty of serious professional misconduct."

26 At the outset of the hearing, the solicitor appearing on behalf of the applicant said that charge 1 was denied in its entirety. 2(a) and (b) were admitted, but (c) was denied. 3(a) and (b) were admitted, but 3(c) was denied. 4(a), (b) and (d) were admitted but (c) was denied. The solicitor also referred to the fact that earlier...